East Bay man cannot use medical marijuana while on probation for pot sales, court rules

SAN FRANCISCO -- A state appeals court ruled in San Francisco on Monday that trial judges can ban the use of medical marijuana in some cases as a condition of probation for people convicted of possessing the drug for sale.

A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation.

Leal was sentenced to the probation term as well as to nine months in county jail after being convicted of possessing marijuana for sale in two incidents in Antioch in 2008 and 2009 and carrying a concealed, loaded gun in the first incident.

Leal, who has completed his jail sentence, appealed the probation condition barring him from using medical marijuana.

He argued the ban violated his right to use the substance under the state's voter-approved Compassionate Use Act of 1996, which allows patients with a doctor's approval to use marijuana for medical purposes.

Leal, who had approval for marijuana treatment for high blood pressure, contended the probation condition wasn't related to his crimes and that there could have been a way to limit his use of medical marijuana without prohibiting it entirely.

But Justice Anthony Kline, writing for the appeals panel, said the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public."

"Leal used Compassionate Use Act authorization as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children," Kline wrote.

In the incident on Feb. 29, 2008, Leal threw a loaded handgun into the bushes of Gentrytown Park in Antioch after he was pursued there by officers. Police found in his pockets 12 plastic sandwich bags containing small amounts of marijuana, a scale and a cell phone that appeared to contain coded marijuana sales messages.

A woman who was in the park at the time testified that he had been "skulking around the bathroom area" and that the encounter with police made her fear for her children's safety.

Leal was convicted by a jury of possession of marijuana for sale, three firearms charges and resisting an officer in that incident.

In the second incident, he pleaded no contest to a charge of possessing marijuana for sale after police found him to be carrying four small bags of marijuana, $965 in cash and a cell phone with buyer messages at a hydroponics supply store on Oct. 14, 2009.

Kline wrote in Monday's decision that trial judges setting probation conditions must balance the need to protect the public with California residents' right to use medical marijuana.

He said there could be cases in which a ban would not be justified if a defendant posed little threat to society and had proved a compelling need for marijuana to alleviate pain.

But the evidence in Leal's case didn't show an overriding medical need and did show "both rehabilitative and public protection value in interfering with Leal's medical use of marijuana while on probation," Kline wrote.

Leal's lawyer in the appeal, Donald Lipmanson of Sebastopol, said no decision has been made on whether to ask the California Supreme Court to review the case.

Lipmanson said the decision was consistent with other state appeals court rulings on the issue, but said the panel's purpose in issuing the detailed 22-page opinion may have been "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."